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WIPO/AEPPI International Symposium on Intellectual Property: Challenges for Developing Countries in a Global Economy Balancing Incentive with Access: Integrating Intellectual Property with Other Areas of Public Policy Cairo December 2 and 3, 2007 Pushpendra Rai World Intellectual Property Organization

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WIPO Strategic Goal Promoting a balanced IP system and realizing its development potential

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Incentive: Innovation Protection Provides safeguards against misappropriation of proprietary technology and opportunistic behavior Ensures dynamic benefits at the expense of static costs Reduces uncertainty of investments vs certainty of profits (before vs after) Imperative for State to intervene due to two characteristics –Non-rivalrousness: simultaneous use by multiple entities no bottlenecks or capacity constraints –Non-excludability: use without authorization cannot be prevented

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Protection Challenges internal challenge actual operation of the system economic and social impact of the patent system external challenge twin challenges

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success has created workload pressures increasing time taken to grant a patent complexity and range of new technologies sheer quantity of applications and capacity constraints actual operation of the system economic and social impact of the patent system

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success has created workload pressures increasing time taken to grant a patent complexity and range of new technologies sheer quantity of applications and capacity constraints general perceptions - apprehension and unease hampering governments’ attempts to deal with urgent policy issues protection to some forms of new technology serving to commodify vital technological information - leave in public domain actual operation of the system economic and social impact of the patent system

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Enabling Access Enhancing capacity of MS to utilize IP for development Instituting IP policies conforming to national developmental plans/public interest objectives Utilizing options/flexibilities available in the international IP regime Developing tools to enhance the understanding of the IP system by innovators, research institutions, SMEs and the creative industries Expeditiously formulating balanced norms/ policies in response to emerging demands, in areas such as TK, Patents, New Technologies Responding to growing demands for improved services under the global IP protection systems –PCT : 147,500 applications - 8 % increase –Madrid: 37,224 registrations - 12 % increase

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Related Public Policy Issues Analysis of the interface between IP and competition policy –How to balance exclusive rights granted by the IP system and the objectives of competition policy? –How can competition policy help to ensure that the IP system meets its objectives ? Evidence on the impact of the IP system on the ability of governments to deal with issues relating to –public health concerns –technology transfer; strategic patenting –Fair use, exceptions and limitations (copyright) –IPR in agriculture/biotech/software/music industry

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United States GAO Report on “U.S. Trade Policy Guidance on WTO Declaration on Access to Medicines May Need Clarification”* Consistent approach by USTR in negotiating, implementing, and monitoring its trade agreements under TPA—namely, by protecting the minimum standards of IP rights provided in TRIPS and promoting high IP standards similar to U.S. law Other than making concessions on compulsory licensing/parallel importation provisions, and on side letters that state that the IP chapter does not affect a country’s ability to take necessary public health measures, USTR has not changed its uniformly high demands with regard to IP protection in its FTAs *(GAO -07-1198: Sep 2007)

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The degree to which USTR’s policy has achieved the right balance of IP protection and attention to public health, and more specifically whether it has respected the Doha Declaration as called for under TPA, depends in part on the stakeholder asking the question This reflects a fundamental tension between protecting IP rights in order to allow companies to recoup investment and encourage innovation for the long term, and allowing competitors to sell lower cost drugs for short term public health needs As Congress contemplates renewal of TPA, there are ongoing questions about the overall balance of IP rights and public health

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OECD Report: Innovation and Growth – Rationale for an Innovation Strategy* How to strike an appropriate balance between providing incentives to innovators and access to new knowledge for users Balance shifting towards “pro-IPR policies” If strong IPRs are needed for incentives for creative activities, should not endow the holder with such broad rights as to block all access to new knowledge In the emerging innovation environment role played by IPR goes far beyond simply ensuring market exclusivity to the inventor *(OECD 2007 http://www.oecd.org/dataoecd/2/31/39374789.pdf)

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Policy challenge - design a system to encourage both invention and diffusion in various ways and in a wide range of economic and technological contexts In each field, a new balance should be struck between rights to control and to access - strengthen their link with other components of innovation policies, instead of the current tendency to conceive them in isolation IPR policy should go beyond the design of the basic, essential legal framework which defines rights and obligations of IPR holders - should also develop complementary instruments –Encouraging the commercialization/monetization of IPRs –Access, standards - encouraging pooling mechanisms, platforms, socially responsible licensing, patent misuse –exemptions to copyright in the light of different use –Reviewing and clarifying exemptions for research use –Promoting a more active and open commercialization policy for universities

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Hopefully all these debates will enable the global IP community to strike the correct balance between providing incentives to the right holder and access to the public, thereby facilitating the promotion of a balanced IP system

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